Summarizing opinions in selected criminal cases from the Sixth Circuit Court of Appeals

Wednesday, February 13, 2013

Half-truths, false statements, and a sentencing "muddle"

After a quiet couple of days, the Sixth Circuit came out swinging today.

The Kurlemann opinion presents Judge Sutton's interesting analysis of the false-statement statute, 18 U.S.C. § 1014. Mr. Kurlemann and his co-defendant engaged in a parade of horribles related to mortgage fraud, all of which led to their indictment and conviction on false-statement and bankruptcy-fraud charges. Although the bankruptcy-fraud convictions would stand, the Sixth Circuit vacated the false-statement convictions, finding that the defendants' conduct --- which involved making certain representations regarding down payments --- amounted only to half-truths, material omissions, or concealments. Judge Sutton explains that "§ 1014 covers 'false statements,'" but "does not generally cover misleading statements, false pretenses, omissions, schemes trickery, fraud or other types of deception."*

In so holding, the court recognized that many other criminal statutes do cover omissions and half-truths, including 18 U.S.C. §§ 1001, 1027, 1035, 1341, and others. Although the court reaches this holding by analysis of the language of the statute itself, it has to jump over a lot of hurdles to get there, including (1) seemingly contrary Sixth Circuit precedent, (2) the fact that the Sixth Circuit pattern jury instructions appear to contradict the court's holding, and (3) the fact that the government actually presented evidence of true false statements such that the jury could have reached a legally correct verdict. In short, the opinion represents a strong defense of statutory construction over the general presumption of district-court correctness that often plagues appeals.

But the opinion goes further! Kurlemann's co-defendant (Mr. Duke) benefited from a government § 5K1.1 motion, but the court made certain statements at sentencing regarding not wanting to depart downward because Mr. Duke deserved an above-guidelines sentence. What resulted, in Judge Sutton's words, was an "explanation for Duke's sentence [that] is a muddle" that effectively prevented "meaningful appellate review." The court thus found that the sentence was procedurally unreasonable despite the fact that Mr. Duke failed to object and thus faced plain-error review. (How many times have you described a sentence as "muddled" in an appeal brief only to be told by the court that it was perfectly clear?)

Speaking of muddled, today's opinions also suggest that district courts are failing to explain decisions related to consecutive/concurrent sentences with some frequency, as demonstrated here and here.

*In light of this opinion, we may be able to forgive the fact that Judge Sutton regularly eschews the Oxford comma.